Geof Stone, who argues that it's improper for a government official to make a decision based on "his own, sectarian religious belief" (see this post for more), gives this example, which I've also seen others give (emphasis added):

[I]n what sense is it "ethical" for Mr. Bush --- acting as President of the United States -- to place his own sectarian, religious belief [about stem cell research] above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

But, as I noted last year, it turns out that many laws do ban the eating of various animal products, for reasons quite unrelated to "objective" matters such as human health. California voters in 1998, for instance, banned the sale of horsemeat for human consumption. Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.

I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic of eating horsemeat, "morally perverse," "a perversion of the human-animal bond." Many of the laws' backers probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption -- the sale of horsemeat for animal consumption is, to my knowledge, still allowed.

Both religiously motivated pork bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. (Geof Stone's exact hypo, which is the denial of a subsidy to pork producers, doesn't even suffer from that problem, but I'll happily use the more troubling case of a total pork sales ban.) Both of them do so because of the unproven and unprovable views of the majority.

One can say that both are permissible, on democratic grounds. One can say that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, then the horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

I agree with EV fully, and add this pragmatic concern. If reviewing courts get in the business of segregating faith-based motives from others, we then get into the tricky business of methodology. Do we count legislative noses? does the signing President/Governor count for more? If it's a popularly-voted initiative/referendum, do we look to public opinion surveys?

And if we do all that, then of course we encourage the legislators to speak in code. Legal counsel to the committee explains:

If you say "ew! gross! Racial discrimination disgusts me!," then you're fine, Senator. If you give a moving speech about how God made all people equal, then the law you've sponsored may get struck down. Oh, and tell that pesky Rev. King to stop talking about the bill in churches. Builds a bad record, ya know.

All silly. But I fear that Prof. Stone is only being honest about an impulse that many other profs and judges share.

If you say "ew! gross! Racial discrimination disgusts me!," then you're fine, Senator. If you give a moving speech about how God made all people equal, then the law you've sponsored may get struck down. Oh, and tell that pesky Rev. King to stop talking about the bill in churches. Builds a bad record, ya know.

Exactly, political figures have used religious rhetoric to persuade people to support or oppose various causes since before the founding of the Republic. If you don't find it persuasive, that's fine but it's silly to try to pretend that there is something suspect or illegitimate about it now.

Prof. Stone's point relates to one man, the Executive, vetoing a law out of personal religious conviction. Prof. Volokh's analogy involves a law supported by an electoral majority which holds, we presume, a certain religious conviction, and is thus not directly on point.

One could argue, for example, that it is easier to inquire into the motivations of a single man than into the hearts of the entire electorate. But more fundamentally, I don't think anyone is arguing that the courts should have the power to strike down a veto if they don't like the reasons behind of it. It's more a question of what governmental motives do we feel are acceptable within the context of our system.

>But, as I noted last year, it turns out that many laws do ban the eating of various animal products, for reasons quite unrelated to "objective" matters such as human health.<

Well, I'm glad you agree that there are objective matters, such as human health, which are certainly valid bases for laws. Or are you questioning that?

The thing with these prohibitions, though, is that they're all silly. Whether or not we can eat horse or dog meat, it's not, at least to my knowledge, a big deal. Probably a lot of people vote for that kind of thing just for the heck of it. On the other hand, maybe they vote for it because they believe eating pretty animals would make us less humane and more cruel to animals.

But what if these kinds of baseless laws started to get more onerous? What if it was cows they outlawed, or meat in general, or fish? Wouldn't people be entitled to start to ask for more objective bases for passing these kinds of laws?

"...convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate?"

Does that mean the majority should always rule? Then, I guess we should burn the Constitution not that I do not think public sentiment should not be a factor in political discussions. Public opinion is vital! Vetoing a bill over the convictions of Congress all vetoes overrides the convictions of Congress. Congress always has the choice to override the veto, and in this case, they did not.

Note: I supported the veto of this bill as someone who is both agnostic and diabetic.

I've only had dog once, overseas, and haven't ever eaten cat or horse. What culinary masterpieces are we depriving ourselves of? None that I know of, but there could be amazing dishes yet to be discovered involving a dog's paw or cat's larynx.

The presidential veto is, next to the filibuster, one of the greatest protections of significant minority opinions in our government. If President Bush was unethical for vetoing the stem cell measure, then every Senator who won't vote to override the veto is also being 'unethical', regardless of their personal moral beliefs. If Prof. Stone is ascribing a different level of responsibility in using the presidential veto compared to a Senator or Representative's vote, then why? His argument seems to be that it is impermissible to stand in the way of significant majorities, but only if you are religiously motivated.

I think this sort of equivocation between personal taste and religion could get you in trouble in other cases. Can one support a law that makes some purely aesthetic change to the twenty dollar bill (from green to blue paper, say), and at the same time oppose a law that would replace Jackson's portrait with the complete ten commandments or the five pillars of Islam?

Of course you could posit some crazy religion, a tenet of which might be turning everything green into blue. But you're saying that if a majority of both Houses of Congress along with the President, passed a law turning currency blue on that reasoning vs. plain aesthetic taste, you wouldn't see a difference in the constitutionality?

Of course maybe it's hard to discern since right now, I can't imagine most people care too much about the purely aesthetic aspects of our currency. But if our government was completely overrun by "Bluists" who claimed America was a "Bluist" nation, and changing our currency to blue was necessary to pay homage to The Great Almighty Blueness...

Personal taste and religion may both be irrational, and they may overlap in cases, but only one is expressly forbidden from begin written into law.

Keep the flame away from the straw! My concern here is that a complex moral issue related to federal funding is involved. There is clearly no one objective answer. A majority (both legislators and by polls the people at large), after some serious contemplation, decided the matter.

Why is there judgment wrong? Because "some" people like President Bush think it is disrespectful of human life in some fashion? Why exactly is the moral judgment of a minority to be controlling here? Many (very well probably more than the Bush group) think it is immoral not to support this research in the furtherance of quality of life. They, including some rather conservative people, also do not agree it is "murder."

"agnostic and diabetic"

Politely, I say that people with more serious concerns than diabeties are affected. Second, belief in a deity is not the only aspect of "religion," surely broadly defined. At issue is matters of ultimate conscience that are also fundamentally connected to religion.

This is an interesting challenge, but I don't think it's decisive. Take the ban on pork production. Suppose the pig farmer (who will lose his job) now asks what justifies the law. The executive responsible for enforcing the law has three justifications at hand:

1. The majority believes that consumption of pork products is disgusting.
2. The majority believes that consumption of pork products is forbidden by God.

3. The majority believes (let's suppose correctly) that consumption of pork will lead to an epidemic of swine-flu.

The farmer might reasonably object to (1) and (2) on the grounds that his economic livelihood should not be destroyed on the basis of sectarian religious or philosophical views. But is there really no distinction to be drawn between reasons (1) and (2) and reason (3)?

The argument in the post is designed to show that religious beliefs aren't distinguishable from "gut" level moral attitudes. But the pork/horse meat examples don't prove the absence of publicly accessible values capable of resolving (or establishing procedures for resolving) important political and legal disagreements. The existence of type (3) reasons above, which you label "objective," suggests that such values do exist and can be distinguished from appeals to sectarian values and beliefs.

I don't disagree with EV's analysis, but maybe what is a bit unsettling about this is the political capital that Bush tries to gain with the religious right (an arguable minority in the general voting population) by posing with kids who are the products of 'unwanted' embryos while explaining his reasons for vetoing the bill.

When banning sale of a particular meat for human consumption you don't see the politician who spearheaded the bill posing with a group of happy dogs or horses.

So in Stoneville I suppose I can't vote for some guy in an election because my religious views say it's the right thing?

One advantage of a democracy, it might be worth emphasizing to Geof, is that people do things for lots of different reasons. If the people elect a religious zealot who vetoes irreligious legislation, then we live with it until the next election. Get it?

I defy anyone to show me anywhere in the founding documents, or any subsequent rulings that a man cannot take the moral teachings of a religion into account when making a decision about public policy. It is a completely ridiculous notion. The language and concepts of morality are rooted in religious thought. They cannot be separated in any sensible fashion.

This bizarre notion of the Left that every molecule of religion (and its penumbras) is to be rooted out of every public activity is just a pathetic... fetish. It is a meaningless, idiotic ritual for deeply silly people. Who the freak cares? And what leads anyone with an IQ in the triple digits to think it is a useful way to spend one's time?

I think we can say that it is inappropriate, constitutionally, to enact laws for religious reasons, while still acknowledging that it is difficult, sometimes, to figure out what the motives of those who enacted those laws. You've made a good argument that there may be times when it is very difficult to pin down the motives of legislative bodies or even the public when it comes to referenda. But it doesn't follow from that argument that there's nothing wrong with enacting laws simply to advance one's religious ideals. We can still argue that people who do such things are dishonorable and should be ashamed of themselves, even while we admit that a court would have some difficulty offering any remedy.

"In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. "

Has to be one of the silliest analogies in recent memory. And to think Professors get paid to think up this tripe.

The obvious difference is that in the case of stem-cell research, Bush's religious teachings translate into a moral problem -- such activity impinges on another human being, or at least another human soul. Now many may disagree and may view the subject as nothing but a clump of cells, but let's not forget that not too long ago some viewed some races as sub-human and deserving of less rights than others, even to the extent that some races could be treated as mere chattel. Would it have been "improper" for a President/Senator/Congressman to oppose this based on his conviction that all Men are created in the Image of the Almighty?

Eating pork, OTOH, does not create an ethical dilemma (unless you are a PETA nut and believe the piggies are like people), so the fact that someone's religion is "offended" is far less of a reason to enact legislation.

As for the majority issue, that is inherent in the very power of the veto. This veto is no more anti-majoritarian than any other.

"Now many may disagree and may view the subject as nothing but a clump of cells, but let's not forget that not too long ago some viewed some races as sub-human and deserving of less rights than others, even to the extent that some races could be treated as mere chattel."

That people even try to make these sorts of comparisons is deeply insulting. It's playing games with language in the face of an utter lack of real, moral argument. The gulf between a thinking, feeling, caring human person and an embryo renders this comparison absurd.

No embryo will ever thank you for your defense of them, because no embryo cares in the slightest about its fate. It has no capacity to care. Shrimp are far far more like a human person than an embryo is. I'm not an advocate for strong animal rights, but I do think it's utterly bizarre and quite telling that you would turn your gaze onto something without even a nervous system before first considering the plight of beings that have far far more capacity to feel pain and care about their treatment than any embryo. It's as good as jumping up and down and saying "I don't have any idea what morality is FOR: to me it's just a list of inexplicable rules that I follow as literalistically as possible, so the argument for me rests not on any actual discussion of morality, empathy, or concerns, but rather on word games as to what we define the word human to mean now that we have a rule that all humans deserve rights!"

The first amendment is there becasue the founders were very aware of the dangers of state sanctioned and suported religion. This has evolved into the separation of church and state doctrine. That is why it is not a good thing to have a president making decision that seem to be based on a particular religion's dogma. I'm not saying that is the case with stem cells, but if it is, then it is counter to what has--until recently--been the spirit of the supreme court's reading of the first amendment.

To apply this idea to Prof V. example, the pork ban is imprermissable becasue it is the state acting to promote a particular religious law. And in this case, religion is the only reason, at this point in time to ban, the consumption of pork. It's not even ambiguous, the way some other activities are, such as the erecting of Christmas creches.

My test is, are the governemtn's actions motivated by unambiguoust attemp to conform to a particular religion's laws?

plunge: I take it that we wouldn't accept the argument that "No [newborn] will ever thank you for your defense of them, because no [newborn] cares in the slightest about its fate. It has no capacity to care." Likewise with a comatose person (assume he isn't brain-dead) or in some measure even with a sleeping person. Yet we defend them because they're likely to some day care, might some day care, or at least once did care. It strikes me as far from bizarre to conclude that the possibility that the embryo will care in 9+x months should lead to our protecting it, just as the likelihood that the newborn will care in x months leads to our protecting it. It's far from an open-and-shut argument, of course, but it's not absurd. So it seems to me that the "has no capacity to care" argument is not really helpful here.

"Politely, I say that people with more serious concerns than diabeties are affected."

Then please tell advocates of embryonic stem cell research to stop using diabetes as an excuse. It does not matter to me what disease someone is inflicted with, because it is still wrong.

"Second, belief in a deity is not the only aspect of "religion," surely broadly defined."

I agree and that is why I am so critical of atheist/secularist fascist, because even in the end those are belief systems. For example, if banning abortion as many claim is a religious position equally so would be supporting legalized abortion. Both deal with belief systems, in the case of the latter that the fetus is not life.

These bans are very similar to bans, popular in liberal areas, on animal fur, and on traditional bans on cock-fighting, bear-baiting, and the like. They are eminently constitutional. Libertarianism is merely an idea, an idea that has to compete with other ideas in the market-place like anything else. Courts have no more right to impose it than they have a right to impose any other theory. I fully agree with Holmes' Lochner dissent.

The idea that morality is of no benefit to society or there is anything wrong with it as a basis for laws has struck me as a serious idea. We only ever apply it to other people's morality. We somehow always manage to find our own morality perfectly reasonable and appropriate.

Liberals are as entitled to their morality laws as conservatives to theirs, if they can persuade the public of the benfits of their viewpoints.

Item. There was a Reverend by the name of Martin Luther King Jr. who taught that racism was sinful and prohibited by the Bible. He was so zealous about his religion that he led a church-sponsored march on Washington and preached to Congress about this.

Did he have a right to turnhis personal religious views into law? Does government ever have the right, under the First Amendment, to enact religious views such as Reverend King's into law?

Of course the reason that laws dealing with murder and racism are not a problem for the establishment clause is because they are overdetermined by secular and religious reasoning. The problem is only when a potential law has only religious motivations, such as a law prohibiting taking the Lords name in vain.

In the case of a pork ban it might be difficult to determine, especially if the law is defended secularly, in terms of public health (maybe there's a pig flu outbreak), etc. Coming up with ad hoc secular reasoning for religiously motivated legislation is what many religious conservatives have spent their time doing over the past few decades-- see teaching of creationism in schools-- which is why the determination can be difficult. That doesn't mean it's non existent though.

Clearly there are some examples where standing against the majority has later come to be regarded as an act of significant courage. Governor Ralph Carr of Colorado, for example, who during World War II committed political suicide by standing up for the rights of Japanese Americans. Is it consistant to argue that Carr's act of conscience is praiseworthy while somehow President Bush's is not? After all, how is it possible to untangle conscience and religion in the religious?

"In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. "

Has to be one of the silliest analogies in recent memory. And to think Professors get paid to think up this tripe.

The obvious difference is that in the case of stem-cell research, Bush's religious teachings translate into a moral problem -- such activity impinges on another human being, or at least another human soul.
[...]
Eating pork, OTOH, does not create an ethical dilemma (unless you are a PETA nut and believe the piggies are like people), so the fact that someone's religion is "offended" is far less of a reason to enact legislation.

This sounds like it comes down to "my religion is noble, and yours is silly", which is not going to reassure those who worry about one religion making the laws for everyone. (Why the scare quotes around "offended" in the last paragraph, but not "moral problem" in the first?)

>So it seems to me that the "has no capacity to care" argument is not really helpful here.<

Well that's a lot overboard, isn't it? It may not be singularly decisive, but it's certainly helpful.

Why is it we don't care about a rock or a plant, for instance? Isn't it because they have no capacity to care? The fact that we care about some things regardless just means that the issue in total is more complex. That doesn't make capacity to are irrelevant, though.

The problems with saying that "potential for life" alone is enough for personhood are many. For one, a very large percent of pregnancies end in miscarriage. Do any of us truly believe each one of these are a tragedy like any person's death?

In any case, I wouldn't say one can't be anti-abortion for secular reasons. If not for religious views, though, I think a lot less people would be.

It's always curious to me that in conversations like this no note is taken of those societies in the 20th century which did officially excise religious belief from all political and societal discourse.

In my view, if is going to go so far as to that laws against eating horses or dogs are constitutional, while laws agaist eating pork are unconstitutional, one really has to admit that one is simply reading ones personal views and tastes into the constitution. The reasons for laws against eating pork -- because some people find it emotionally revolting -- are the same as, and just as good as, the reasons for laws against eating these other types of animals. I think the reasons given on all sides are mere rationalizations, and moral and emotional feeling often drives our behavior.

I would favor admitting we are emotional creatures rather than pretending we are something we are not. We rationalize our feelings all the time. People ought to be permitted to do so with equal opportunity.

I'm agreeing with Professor Volokh's premise here -- I agree upholding bans on horsemeat while striking down bans on pork is intellectually dishonest. I would uphold both, not merely on democratic grounds, but because I find the idea that lawyers have oracular powers to discern what is and what is not rational unavailable to the general public an idea that is, quite frankly, quaint.